Products Liability Law Daily Wrap Up, PLEADINGS—HOUSEHOLD PRODUCTS—S.D. Cal.: Suit over lead in Tampax tampons moves forward, (Aug 15, 2025)

By Brian Craig, J.D.

The allegations were sufficiently plausible to conclude that the feminine hygiene products contain an amount of lead to potentially harm consumers.

In a suit brought by California consumers against The Procter & Gamble Company alleging that the manufacturer of Tampax tampons misled consumers into believing the feminine hygiene products are free of lead, the federal district court in San Diego has denied the manufacturer’s motion to dismiss. In concluding that the California consumer protection law claims could mostly proceed, the court held that the allegations were sufficiently plausible to conclude that the feminine hygiene products contain an amount of lead to potentially harm consumers. The court found that the details of scientific testing by a laboratory showing that the tampons contained a substantial amount of lead are sufficient at the pleading stage (Barton v. The Procter & Gamble Co., No. 3:24-cv-01332-GPC-SBC (S.D. Cal. Aug. 8, 2025)).

Two California consumers that purchased Tampax Pearl tampons and Tampax Radiant tampons sued the manufacturer, The Procter & Gamble Company alleging violations of California consumer protection laws. The proposed class action lawsuit alleges that the tampon product labels misled consumers into believing that the tampons are free of lead. The claims are premised on a theory of affirmative misrepresentation on the tampon labeling, which misleads consumers to believe that the tampons are free of any “potentially harmful elements,” including lead. The complaint also alleges that the ordinary and expected use of the tampon products would expose consumers to more than the Maximum Allowable Dose Level (“MADL”) of 0.5 micrograms of lead per day for reproductive toxicity, as established by California’s Proposition 65. Specifically, the complaint allegations violations of California’s Unfair Competition Law (UCL), False Advertising Law (FAL), and Consumers Legal Remedies Act (CLRA). The tampon manufacturer moved to dismiss the claims for failure to state a claim.

Affirmative misrepresentations. The court first concluded that the California consumer protection claims can move forward based on alleged affirmative misrepresentations. To plausibly allege a UCL, FAL or CLRA claim based upon misrepresentation, the consumers must allege that they relied on a misrepresentation and suffered injury as a result. The court found that the allegations are sufficiently plausible to conclude that the tampon products contain an amount of lead so as to potentially harm consumers. The details of scientific testing by a laboratory showing that the tampons contained a substantial amount of lead are sufficient. A level of lead exceeding the MADL under Proposition 65 would be material to a reasonable consumer. By alleging a level of lead that exceeds the MADL, the consumers sufficiently allege the amount of lead which could affect a reasonable consumer’s purchasing decision. Therefore, the consumers have plausibly alleged that the representations are misleading based on the undisclosed lead in the tampon products.

Unlawful and unfair prongs. The court dismissed the unfair prong alleging a violation of California’s Unfair Competition Law (UCL) but allowed the unlawful prong to move forward. The UCL prohibits any unlawful, unfair or fraudulent business act or practice. The court found that the allegations were too conclusory and insufficient to plausibly allege a UCL claim under the “unfair” prong. The consumers simply restate and recite the “unfair” tests, without adding new facts that would support those allegations. But the consumers were entitled to proceed with the UCL claim under the unlawful prong based upon an alleged violation of the CLRA because the affirmative misrepresentation claim is moving forward.

Equitable claims. Finally, the court permitted the consumers to proceed with their equitable claims seeking disgorgement of the manufacturer’s profits, restitution, and injunctive relief. The court found that the consumers sufficiently pleaded that restitution under the CLRA or UCL would be more certain, prompt, or efficient than the monetary damages. Furthermore, the complaint sufficiently alleged misrepresentations for injunctive relief, at least at the pleading stage.

Therefore, the court largely denied the manufacturer’s motion to dismiss the claims.

The Case is No. 3:24-cv-01332-GPC-SBC.

Judge: Curiel, G.

Attorneys: Naomi B. Spector (KamberLaw LLP) for Allison Barton. Andrew J. Soukup (Covington & Burling LLP) for The Procter & Gamble Co.

Companies: The Procter & Gamble Co.

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